Ex Parte TOSA et al

Patent Trials and Appeals Board

May 23, 2019

15000165 - (D) (P.T.A.B. May. 23, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/000, 165 01/19/2016
23373 7590 05/28/2019
SUGHRUE MION, PLLC
2100 PENNSYLVANIA A VENUE, N.W.
SUITE 800
WASHINGTON, DC 20037
FIRST NAMED INVENTOR
Takatoshi TOSA
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
Q224686 4074
EXAMINER
NGUYEN,TUX
ART UNIT PAPER NUMBER
2649
NOTIFICATION DATE DELIVERY MODE
05/28/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PPROCESSING@SUGHRUE.COM
sughrue@sughrue.com
USPTO@sughrue.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte TAKATOSHI TOSA, TAKASHI MAEDA,
and TAKESHI NISHIW AKI
Appeal2018-005817
Application 15/000, 165
Technology Center 2600
Before JASON V. MORGAN, MICHAEL M. BARRY, and
DAVID J. CUTITTA II, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 2, 5-7, 12-14, and 16-20, which constitute all pending claims. See
Final Act. l; App. Br. 21-24 (Claims App'x). We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify Mitsubishi Electric Corporation as the real party in
interest. App. Br. 2.
Appeal2018-005817
Application 15/000, 165
Introduction
Appellants describe the invention as relating to driver assistance using
inter-vehicle communications. Spec. ,r 1. Appellants explain that the prior
art does not consider "the emergency degree or the like of data contents"
when controlling transmission power for broadcasting signals. Spec. ,r 7.
Appellants describe that the invention addresses problems arising from this
prior art deficiency, with the objective of a mechanism "that reduces
communication interference in inter-vehicle communication by considering
the emergency degree of the environment around a vehicle." Spec. ,r 8.
Claims 1 and 17 are illustrative:
1. A communication apparatus mounted in a vehicle
and comprising:
a communication unit that has a power setting unit and
performs inter-vehicle communication; and
a control unit that has a vehicle information acquisition
unit for acquiring vehicle information and a reference vehicle
position estimation unit for estimating a present position of a
reference vehicle and controls the communication unit,
wherein when high-emergency-degree information of the
reference vehicle is transmitted by use of vehicle information,
the control unit controls the communication unit in such a way
that transmission is performed with increased transmission
power, and
wherein the control unit has a vehicle position prediction
unit for predicting a position of a neighboring vehicle; the
control unit comprehends a situation around the reference
vehicle through prediction by the vehicle position prediction
unit; and in the case where the emergency degree of the
situation around the reference vehicle is high, the control unit
controls the communication unit in such a way that
transmission is performed with increased transmission power.
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Application 15/000, 165
1 7. A communication apparatus to be carried in a
reference vehicle, said apparatus comprising:
a communication unit that has a controllable transmission
power; and
a control unit that controls said transmission power to
increase said transmission power when an assessment of a
situation around said reference vehicle indicates a high degree
of emergency, said assessment including at least one of:
predicting a future position of a neighboring vehicle relative to
said reference vehicle, detecting a sudden change in at least one
of speed and direction of said reference vehicle, and detecting
an intersection that will be entered by said reference vehicle
within a predetermined period of time.
App. Br. 21, 23-24 (Claims App'x).
Re} ections and References
The Examiner rejected claims 1, 2, 5-7, and 12-14 under 35 U.S.C.
§ I02(a)(l) as anticipated by Subramanian (US 2014/0045556 Al; published
Feb. 13, 2014). Final Act. 3-5.
The Examiner rejected claims 16-20 under 35 U.S.C. § 103 as
unpatentable over Subramanian and Hamada (US 2010/0312432 Al;
published Dec. 9, 2010). Final Act. 5-7.
ANALYSIS
Claim 1 and its Dependent Claims
Appellants persuasively argue the Examiner errs in the 35 U.S.C.
§ I02(a)(l) rejection of claim 1. App. Br. 6-18. Anticipation is a strict
standard that requires finding each and every element as set forth in the
claim, either expressly or inherently, in a single prior art reference, arranged
as required by the claim. Verdegaal Bros., Inc. v. Union Oil. Co. of Cal.,
814 F.2d 628,631 (Fed. Cir. 1987). To establish anticipation, every element
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Appeal2018-005817
Application 15/000, 165
and limitation of the claimed invention must be found in a single prior art
reference, arranged as in the claim. Karsten Mfg. Corp. v. Cleveland Golf
Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001). "The identical invention must be
shown in as complete detail as is contained in the ... claim." Richardson v.
Suzuki Motor Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989). An anticipatory
reference under 35 U.S.C. § 102
must clearly and unequivocally disclose the claimed [invention]
or direct those skilled in the art to the [invention] without any
need for picking, choosing, and combining various disclosures
not directly related to each other by the teachings of the cited
reference. Such picking and choosing may be entirely proper in
the making of a 103, obviousness rejection, where the applicant
must be afforded an opportunity to rebut with objective
evidence any inference of obviousness which may arise from
the similarity of the subject matter which he claims to the prior
art, but it has no place in the making of a 102, anticipation
rejection.
In re Arkley, 455 F.2d 586, 587-88 (CCPA 1972) (emphases added).
Appellants specifically contend, inter alia, 2
[i]t is clear that claim 1 requires an increase in
transmission power based in part on a predicted position of a
neighboring vehicle. Claim 1 recites considering the position
of a neighboring vehicle to understand the "situation"
surrounding the reference vehicle, and transmitting with higher
power if the "situation" indicates a high degree of emergency.
Since the "situation" is dependent at least in part on the
predicted position of a neighboring vehicle, and since the
transmission with higher power is based at least in part on the
"situation," it necessarily follows that the transmission at a
higher power level is based at least in part on the predicted
position of the neighboring vehicle. This is clearly not the case
in Subramanian.
2 Because we find this contention persuasive, we do not discuss all issues
raised by Appellants.
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Application 15/000, 165
App. Br. 17; see also id. at 18.
The Examiner responds by finding claim 1 's "position prediction"
requirement, as recited, which requires both "estimating a present position of
a reference vehicle" and "comprehend[ing] a situation around the reference
vehicle through prediction by the vehicle position prediction unit ['for
predicting apposition of a neighboring vehicle,']," reads on Subramanian's
disclosure of an embodiment in which portable cell phones communicate
"safety messages" between cell phones that are within vehicles. Ans. 4
(citing Subramanian ,r,r 4, 16, 46, 55-56, 59, 71, 124). Appellants reply that
[ w ]hatever transmission power increase is taught by
Subramanian, it is not in response to estimating the present
position of a 'reference' vehicle, predicting the position of a
neighboring vehicle in order to understand the situation around
the reference vehicle, and then transmitting with increased
power when the situation around the reference vehicle indicates
a high degree of emergency.
Reply Br. 4; see also id. at 4--14 (addressing the cited disclosures of
Subramanian).
Appellant's argument is persuasive. The Examiner relies on an
embodiment in Subramanian that does not predict the position of a
neighboring vehicle in order to understand the situation around a reference
vehicle, as recited in claim 1. Claim 1 requires, inter alia, "estimating a
present position of a reference vehicle," "predicting a position of a
neighboring vehicle," using prediction to "comprehend[] a situation around
the reference vehicle," and "increas[ing] transmission power" when the
"emergency degree of the situation around the reference vehicle is high."
Thus, we agree with Appellants that claim 1 requires "predicting the position
of a neighboring vehicle in order to understand the situation around the
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Appeal2018-005817
Application 15/000, 165
reference vehicle, and then transmitting with increased power when the
situation around the reference vehicle indicates a high degree of
emergency." Reply Br. 4. The paragraphs that the Examiner relies on
Subramanian for disclosing "predicting a position of a neighboring vehicle,"
however, disclose features for predicting the position of a pedestrian, not a
vehicle. See Subramanian ,r,r 124 (inputs "can be used to predict the position
of a pedestrian"), 132 (signals "used to predict the position/direction of
travel of a pedestrian").
Although Subramanian discloses vehicle-mounted wireless devices
that transmit "safety messages," see, e.g., Subramanian ,r 56, Subramanian
explains that vis-a-vis pedestrian-related safety messages, while the wireless
device is inside a vehicle, it "decides to refrain from transmitting safety
messages." Subramanian ,r 38. Thus, although we agree with the Examiner
that Subramanian predicts pedestrian traffic and discloses the sending of
safety messages from vehicle-mounted wireless devices, the Examiner's
findings are insufficient to establish, as required by 35 U.S.C. § 102, that
Subramanian discloses "comprehend[ing] a situation around the reference
vehicle through prediction by the vehicle position prediction unit" ("for
predicting a position of a neighboring vehicle"), as recited.
Accordingly, we do not sustain the§ 102 rejection of claim 1. We,
likewise, do not sustain the§ 102 rejection of its dependent claims 2, 5-7,
12-14, or the § 103 rejection of dependent claim 16, because the Examiner
makes no findings for these claims that cures the deficiency discussed for
the rejection of claim 1. See Final Act. 4--6.
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Application 15/000, 165
Independent Claim 17 and its Dependent Claims
Appellants unpersuasively contend that "[ c ]laim[] 17 patentably
distinguishes over the art for the same reasons as discussed above relative to
claim 1 but even more clearly." Reply Br. 16; see also id. at 16-19. The
scope of claim 17, however, is very different from that of claim 1. In
particular, claim 17 recites an apparatus with a control unit that increases
transmission power when "an assessment of a situation around said
reference vehicle indicates a high degree of emergency" and the assessment
includes either (a) "predicting a future position of a neighboring vehicle,"
(b) detecting a sudden change in at least one of speed and direction of said
reference vehicle, or ( c) "detecting an intersection that will be entered by
said reference vehicle within a predetermined period of time." We agree
with the Examiner that Subramanian teaches increasing transmission power
when a sudden change of a vehicle's speed is detected, as recited in claim
17. Subramanian discloses vehicle-mounted devices sending safety
messages including vehicle braking and acceleration information, see
Subramanian ,r,r 55-56, and that in safety-critical situations such as "when
the communications device is close to traffic" the safety messages will be
sent with increased transmission power, id. ,r 59.
Accordingly, we sustain the Examiner's§ 103 rejection of claim 17.
In so doing, as consistent with our discussion above, we adopt as our own
the findings and reasoning as set forth by the Examiner in the Final
Rejection and in the Answer. See Final Act. 6-7; Ans. 5---6.
We also, likewise, sustain the § 103 rejection of claims 18 and 19, for
which Appellants offer no substantive separate arguments. Regarding claim
20, we find unpersuasive Appellants' argument that "neither Subramanian
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nor Hamada include any discussion whatsoever of looking at a particular
timing of a reference vehicle entering an intersection," as recited. App.
Br. 19. This argument is conclusory and, regardless, we agree with the
Examiner that ordinarily skilled artisans would have understood the
disclosure in Subramanian paragraphs 16 and 58-the monitoring of the
"periodicity" of messages and increasing transmission periodicity under
certain conditions such as when there is "higher vehicular traffic"-teaches
or at least suggests the disputed requirements for "detecting an intersection
that will be entered by said reference vehicle within a predetermined period
of time," as recited. Subramanian specifically teaches monitoring proximity
to intersections and sending safety messages accordingly. See Subramanian
,r 153. Accordingly, Appellants do not persuade us of Examiner error, and
we sustain the § 103 rejection of claim 20.
DECISION
We reverse the Examiner's 35 U.S.C. § 102(a)(l) rejection of claims
1, 2, 5-7, and 12-14.
We reverse the Examiner's 35 U.S.C. § 103 rejection of claim 16.
We affirm the Examiner's 35 U.S.C. § 103 rejection of claims 17-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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